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Glaring surrender of a fundamental freedom

Now that the time has come for military courts’ already extended jurisdiction to expire — in January 2019 — any attempt to renew their mandate must be resisted

Glaring surrender of a fundamental freedom

In January 2019, the constitutional and legal provisions that allow military courts to conduct trials of civilians for terrorism-related offences will lapse.

This time around, parliament must ensure that military courts are not given another extension. Instead — as should have been done four years ago after the Army Public School tragedy — all stakeholders must undertake the much-needed reform of the regular criminal justice system to make it more effective, expeditious, and fair.

Military courts were first empowered to try civilians for certain terrorism-related offences in January 2015 for a period of two years, through the 21st Amendment to the Constitution and amendments to the Pakistan Army Act, 1952.

The expansion of the jurisdiction of military tribunals was a key part of the government’s 20-point National Action Plan (NAP), adopted following the attack on the Army Public School in Peshawar in December 2014. NAP envisioned military courts to be a short-term “solution” to try “terrorists”, to be operational only for a two-year period during which the government would bring about necessary “reforms in criminal courts system to strengthen the anti-terrorism institutions”.

Despite earlier promises that military courts were only temporary and “exceptional”, after the expiration of the 21st Amendment, the parliament enacted the 23rd Amendment to renew military courts’ jurisdiction over civilians for another two years until January 2019.

With less than three months left before these provisions lapse, it is no surprise that any comprehensive reform of the criminal justice system has not even started, let alone be completed.

In the four years they have been in operation, military courts have convicted 419 people for terrorism-related offences, out of which 247 people have been sentenced to death and 172 people have been given prison sentences. At least 56 people have been hanged. Strikingly, only two people have been acquitted.

Military courts have targeted the constitution’s fundamental principles: separation of powers, independence of the judiciary and protection of fundamental rights. In every case where information is available, accused persons were denied the right to counsel of choice (and were ‘defended’ by military officers); they were denied a public hearing; they were denied the right to appeal before a civilian court; and a very high number of convictions — nearly 98 per cent — were based on “confessions” obtained without adequate safeguards against torture or other ill-treatment. The military also failed to disclose the exact charges against the accused or provide convicts copies of a judgment with evidence and reasons for the verdict.

It is particularly telling that of the three main political parties, only the Pakistan People’s Party’s manifesto for the 2018 elections expressed concern about military courts, and that too was limited to reforming their procedures to make them more compatible with the right to fair trial. The PTI’s manifesto is completely silent on the question of military courts, and the PML-N lists them as one of their key successes in justice sector reform.

Another striking feature about how military courts operate is their link with “missing persons” — people allegedly subjected to enforced disappearance by state agencies.

In a number of cases, families petitioned the Supreme Court alleging people convicted by military courts had been subjected to enforced disappearance by military authorities as far back as 2010 and kept in secret detention for many years before their military trials. State agencies kept denying any knowledge of their whereabouts, until their names appeared in an ISPR press statement on people convicted and sentenced to death by military courts.

In the past, the Supreme Court has acknowledged the unlawfulness of keeping people in secret detention, calling this practice a “crime against humanity”. In these cases, however, interpreting its jurisdiction to review trials by military courts very narrowly, the Court has held that the circumstances in which people were arrested, even if they were forcibly disappeared and kept in secret detention for years, was not relevant to its review jurisdiction.

What this translates into is that convictions by military courts “legitimise” the act of enforced disappearance, and people disappeared by law enforcement agencies years before military courts were even authorised to try cases of civilian terrorism suspects are left with no legal recourse to challenge their disappearance.

Parliament’s decision to allow military courts to try civilians in secret, opaque proceedings — which was later endorsed by the Supreme Court — is one of the most glaring surrenders of fundamental freedoms of the people of Pakistan for so-called “security” in our recent past.

Yet, our political leadership is silent about the injustices perpetrated by this parallel ‘justice’ system. It is particularly telling that of the three main political parties, only the Pakistan People’s Party’s manifesto for the 2018 elections expressed concern about military courts, and that too was limited to reforming their procedures to make them more compatible with the right to fair trial. The PTI’s manifesto is completely silent on the question of military courts, and the PML-N lists them as one of their key successes in justice sector reform.

Now that the time has come for military courts’ already extended jurisdiction to expire, any attempt to renew their mandate must be resisted.

We have ample evidence to show extending their jurisdiction once again will not help counter the very real terrorist threat facing Pakistan. Instead, it will bring Pakistan a step closer to permanently incorporating into law what was said to be an “exceptional”, “short-term” departure from the normal legal processes and human rights protections, giving the State an excuse to continue to ignore the actual reasons behind the lack of accountability for terrorism and other serious crime.

Reema Omer

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The writer is a lawyer.

One comment

  • One wonders why person accused of Mumbai carnage, particularly those who were issuing instructions from Pakistan on Telephone/ mobile
    to preprator in Mumbai are not tried by military court

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